Citation Nr: 9829831
Decision Date: 10/06/98 Archive Date: 10/13/98
DOCKET NO. 92-24 532 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder, including post-traumatic stress disorder (PTSD).
2. Entitlement to service connection for a back disorder.
3. Entitlement to a total and permanent disability rating
for pension purposes.
REPRESENTATION
Appellant represented by: Non Commissioned Officers
Association of the U.S.A.
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from October 1968 to May 1973.
This matter initially came before the Board of Veterans’
Appeals (Board) on appeal from a November 1991 rating
decision which denied service connection for a psychiatric
disorder, including PTSD and a permanent and total disability
rating for pension purposes, and a January 1992 rating
decision which denied service connection for a back disorder.
The Board remanded the appeal to the RO for additional
development in April 1995.
In a statement received in July 1997, the veteran raised the
additional issues of service connection for septoplasty,
alcoholism and a headache disorder. These issues are not in
appellate status and are referred to the RO for appropriate
action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he was discharged from service for
psychiatric reasons, and believes that he has PTSD as a
result of service in Vietnam. The veteran also asserts that
he is permanently and totally disabled for pension purposes.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran has not met the
initial burden of submitting sufficient evidence to justify a
belief by a fair and impartial individual that he has
presented a well-grounded claim of service connection for a
psychiatric disorder to include PTSD or a back disorder.
Additionally, it is the decision of the Board that the
preponderance of the evidence is against the veteran's claim
of entitlement to a permanent and total disability rating for
pension purposes.
FINDINGS OF FACT
1. No competent evidence has been submitted to establish
that the veteran has a psychiatric disorder, including PTSD,
or a back disorder which is due to disease or injury incurred
in or aggravated by service.
2. The veteran's principal disabilities are nonservice
connected anxiety disorder with PTSD features, rated 30
percent disabling; residuals of a low back injury, rated 20
percent disabling; status post fracture of the thoracic spine
at T12, with musculoskeletal low back pain without
radiculopathy, rated 10 percent disabling, and hypertension,
rated 10 percent disabling. Other disabilities include
personality and psychotic disorder, not otherwise specified,
tension headaches, and status post septoplasty with partial
resection, each rated noncompensable.
3. The veteran’s anxiety disorder with PTSD symptoms is
manifested primarily by chronic sleep impairment, but does
not result in more than occasional decrease in work
efficiency or intermittent periods of inability to perform
occupational tasks.
4. The veteran's residuals of a low back injury are
manifested by arthritis and limitation of motion.
5. The veteran’s thoracic spine disability is manifested by
degenerative changes suggestive of a very small superior
compression fracture at T12.
6. The veteran's hypertension is manifested by diastolic
pressures which are predominantly less than 100, but does
require continuous medication for control.
7. Symptoms of the veteran’s personality and psychotic
disorders are not severe enough either to interfere with
occupational and social functioning or to require continuous
medication.
8. The veteran’s tension headaches are manifested by a sharp
and stabbing type pain in the frontal area, lasting for a
couple of seconds, two to three times a day.
9. Obstruction of the nasal passages or more than slight
residuals of the veteran’s septoplasty with partial resection
have not been demonstrated.
10. The veteran's disabilities are not productive of total
disability sufficient to render the average person unable to
follow a substantially gainful occupation.
11. The veteran's disabilities do not permanently preclude
him from engaging in substantially gainful employment,
consistent with his age, education and occupational history.
CONCLUSIONS OF LAW
1. The veteran has not submitted well-grounded claims of
service connection for a psychiatric disorder, including
PTSD, or a back disorder. 38 U.S.C.A. § 5107 (West 1991).
2. The requirements for entitlement to a permanent and total
disability rating for pension purposes have not been met. 38
U.S.C.A. §§ 1155, 1502, 1521 (West 1991 & Supp. 1998); 38
C.F.R. §§ 3.102, 3.321, 3.340, 3.342, 4.15, 4.17 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Background
The veteran’s service medical records are negative for any
complaints, treatment or abnormalities referable to a back
disorder or psychiatric problems during service. Service
records show that the veteran served in Vietnam for one month
and 13 days; he has no combat awards or decorations.
A letter from R. J. Goodall, M.D., dated in October 1979,
indicates that the veteran was treated at an emergency room
for low back pain from an injury sustained while working
construction, and was later seen at his office. The veteran
denied any previous history of back pain or trauma. Dr.
Goodall’s impression was that of soft tissue trauma to the
lumbar spine. In a letter dated in November 1979, Dr.
Goodall indicated that x-ray studies of the lumbar spine
revealed slight narrowing of the disc space between L4 and
L5, suggestive of degenerative disc disease. The x-ray
studies also revealed spina bifida occulta at S1, which he
opined was probably congenital in nature.
In his original application for VA pension, received in
January 1980, the veteran reported that he injured his back
at work on October 24, 1979. The veteran also indicated that
he had been working construction for six years and had not
lost any time at work due to illness.
Copies of medical records from G. Argilagos, M.D., received
in November 1983, indicate that the veteran was seen in May
1983 for back pain incurred while working in a restaurant.
The veteran reported that he heard a popping sound in his
back when he slipped and fell while lifting a large heavy
pan. X-ray studies at that time showed a normal lumbar spine
with spina bifida occulta in the sacrum. A CT scan of the
lumbar spine revealed a suspicion of a small bulging annulus
and/or a small prolapsed herniation at L4-L5.
A report from R. C. Ponder, M.D., dated in October 1983 and
received in November 1983, included the diagnosis of
degenerative joint disease about the L5-S1 interval with a
superimposed traumatic event as the precipitating episode
primarily a soft tissue pattern of discomfort.
Additional medical evidence of record includes numerous
clinical notes from the Texas Department of Criminal Justice,
Institutional Division, showing treatment for various medical
problems, including recurring back pain, from 1985 to 1995
and occasional psychiatric symptoms. When initially examined
in 1985, the intake history reflected back problems but no
psychiatric complaints. X-ray studies demonstrated the
presence of old compression wedging deformity of T12 in
November 1985. Treatment records report a complaint of
“flashbacks” and that the veteran has served in Vietnam.
In 1986 the veteran was seen complaining that he was unable
to relax. A finding of generalized anxiety disorder was
made. In August 1994 a notation of post-traumatic stress
syndrome was made; however no psychiatric examination report
is of record. These records do not link any findings of a
back disorder or psychiatric disorder to the veteran’s
military service.
On VA psychiatric examination in August 1991, the veteran
reported that he worked the “flight line” while stationed
in Vietnam for 1 month and 13 days, and that he “saw body
bags containing burned bodies.” The veteran also reported
that there were rocket attacks on the airbase almost every
night, and that he now had nightmares of men being hit during
rocket attacks about twice a week. The veteran also reported
that he had problems falling asleep about two times a week
and had headaches 2-3 times a week as well. The veteran
reported that since his return from Vietnam he had had
difficulty getting along with people and “stayed off to
himself.” He said he drank heavily to cope with his
symptoms, and considered suicide by taking an overdose of
pain medication which he had been taking for low back pain.
The veteran reported that he had difficulty keeping a job
since his discharge from service and last worked as a
janitor. On examination, the veteran was alert and
cooperative, and his affect was euthymic. His speech was
normal in rate and amount, and content was relevant and goal-
directed. There was no evidence of hallucinations or
delusions, and he was well oriented. The impression on Axis
I was anxiety disorder, not otherwise specified, with
features of PTSD. On Axis II, the impression was personality
disorder, not otherwise specified.
When seen for a VA general examination in August 1991, the
veteran reported that he injured his back while working
construction in 1979, and also had a T12 compression
fracture, which said was “possibly” incurred in service,
though he never sought any medical treatment in service. The
examiner indicated that he had reviewed the claims file and
did not find any evidence of a T12 fracture, and opined that
the fracture might have occurred after 1983. On examination,
the veteran’s blood pressure was 136/78, and his heart rate
and rhythm were regular. There were no carotid bruits or
distention of jugular veins, and no thyromegaly. His lungs
were clear without wheezes, rhonchi or rales. Heart sounds
for S1 and S2 were normal without murmur, gallop or ectopy.
His abdomen was soft and benign, and there was no
organomegaly or remarkable tenderness. There was no
peripheral edema, and no evidence of gross neurological
deficits. The veteran also had needle marks in the right
antecubital region, which appeared to be very old. The
veteran reported that they were from donation of plasma. The
diagnoses included chronic low back pain (see orthopedic
examination), rule out PTSD (see neuropsychiatric
examination), and obesity.
On VA orthopedic examination in September 1991, the veteran
reported that he was told that he had a fracture of the spine
when seen for a back injury at work in 1979. The veteran
indicated that his back problems had essentially resolved to
the point that he was able to get around reasonably well,
though he had some recurring stiffness and low back pain
radiating into his left thigh about twice a week. He denied
any history of pain or numbness radiating below his knees,
and described his symptoms as cramping and minimal numbness.
He denied any change in bowel or bladder habits. On
examination, the veteran was moderately obese, with no
evidence of listing or obvious scoliosis. The veteran had
full forward flexion to 90 degrees actively. Lateral bending
was limited to 20 degrees, bilaterally, and caused pain in
the midline lumbar region. The veteran had normal sensation
to pinprick and light touch throughout the lower extremities.
Quadriceps, tibialis anterior, extensor hallucis longus and
“gastrocsoleus” strength were 5/5 throughout. Straight leg
raising was negative. X-ray studies revealed a large
anterior osteophyte at the T11-T12 junction and minimal
evidence to suggest a very small superior compression
fracture of T12 in the past. There was no other evidence of
loss of disc space height or spondylolysis or
spondylolisthesis. The impression included status post T12
fracture, with chronic muscular low back pain without
radiculopathy. The examiner opined that he believed the
veteran’s back problems were minimally disabling at that
time.
A Notice of Decision from the Social Security Administration,
dated in January 1994 concluded that the veteran was not
disabled for purposes of entitlement to disability benefits
under Title I of the Social Security Act.
On VA examination in January 1996, the veteran reported that
his headaches began in 1969, while in service, and that he
treated them with alcohol. The veteran described them as a
sharp stabbing type pain in the frontal area occurring for
about one two seconds, two to three times a day. The
headaches did not affect his vision and were not
incapacitating. He takes “Isoset”, two to three times a
day. The veteran indicated that his hypertension was first
diagnosed in 1995, but that it was well controlled with
medication. The veteran did report some dizziness when
changing positions and with his headaches. The veteran
reported that his back problems began in 1975, as a result of
an industrial injury. He experienced some aching with
discomfort down the right leg; worse in cold weather. He was
noted to have a restriction in prison, to avoid prolonged
standing or lifting. The veteran also had a history of
septoplasty in February 1995. On examination, the veteran
was well developed, well nourished, alert and well oriented.
His blood pressure was 122/72, and his heart rate and rhythm
were regular. There was no evidence of murmurs, thrills,
taps or heaves. Fundoscopic examination was unremarkable.
There was no evidence of septal deviation. His lungs were
clear to percussion and auscultation, without wheezes,
rhonchi, or rales. There were no masses, organomegaly, or
areas of tenderness in the veteran’s abdomen. Flexion of the
lumbar spine was possible to 75 degrees, and extension
backwards was to 15 degrees. There was no localized
tenderness, although the veteran identified an area in the
mid-lumbar area where he reportedly experienced pain.
Straight leg raising was positive on the right side.
Peripheral pulsations in the extremities were good and equal,
bilaterally, with full range of motion and no edema. The
veteran could heel and toe walk without difficulty. Cranial
nerves II through XII were intact and active, and deep tendon
reflexes were 2+ in the upper extremities and 1+ in the lower
extremities. Motor and sensory systems were intact. The
assessment included tension headaches, hypertension,
controlled, status post fractured lumbar vertebra by history,
with subsequent development of degenerative joint disease,
status post septoplasty, and PTSD, by history.
On VA psychiatric examination in September 1996, the veteran
reported that things started changing for him when he went to
Vietnam. He reported that his 12 year old brother was killed
shortly before he went to Vietnam, and that he attempted
suicide by cutting his finger and then tried to cut his
throat while in Vietnam, but was stopped by a sergeant. The
veteran reported that he was then taken to an infirmary and
seen by a doctor, but was not treated. The veteran reported
that he loaded burned bodies onto transport planes, and
stated that his base came under mortar/rocket attacks almost
every night. He stated that in his memories, he sees men hit
and screaming as they burn up, but that he does not remember
the names of any of the men who were killed or injured by
enemy action. The veteran also reported dreams about being
in Vietnam, and about his two deceased brothers, and stated
that when he wakes from one of these dreams, he has an
intense headache. The veteran reported that he was short
tempered and asked for medication to calm him down so that he
would not be provoked to kill somebody. He reported bad
dreams of people talking to him especially, after he had been
drinking. The veteran reported that he was unable to hold a
job or stay in a marriage since his discharge from service.
The findings on mental status examination were essentially
the same as those reported on VA examination in August 1991.
His mood was euthymic during most of the examination, but was
changeable. His demeanor became angry when he talked about
his perception of unfair treatment by the military and his
premature termination from service. His speech was normal in
rate and rhythm, and his content was relevant and goal
directed. His affect was of normal range, but was mildly
labile. There was no evidence of hallucinations or
delusions, and he was well oriented. The diagnoses on Axis I
included anxiety disorder, not otherwise specified, with PTSD
symptoms (provisional). On Axis II, personality disorder,
not otherwise specified, with paranoid and cluster-B traits.
On Axis IV, the diagnoses was incarceration. On Axis V, the
examiner assigned a Global Assessment of Functioning (GAF)
score of 55 for the current and past year. The examiner
commented that the veteran reported some symptoms of PTSD,
but that the findings did not meet the diagnostic criteria
for a diagnosis of PTSD. Furthermore, there was no
documented verification of the combat stressors reported by
the veteran, and the diagnosis of PTSD was provisional.
Analysis
In order for consideration to be given to a claim of
entitlement to service-connection, there must be a showing
that a particular injury or disease resulting in disability
was incurred in or aggravated by service. 38 U.S.C.A. § 1110
(West 1991).
In adjudicating a claim for service connection for PTSD, the
Board is required to evaluate the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by the veteran's military records, and all
pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b);
38 C.F.R. § 3.304(f) (1998); see also Hayes v. Brown, 5 Vet.
App. 60, 66 (1993). Additionally, VA regulations require
three elements to establish service connection for PTSD:
medical evidence establishing a clear diagnosis of the
condition; credible evidence that an inservice stressor
occurred; and a link, established by medical evidence,
between the current symptoms and the inservice stressor. If
a claimed inservice stressor is related to combat, service
records showing combat service or a combat citation is
conclusive evidence of a stressor, in the absence of evidence
to the contrary. 38 C.F.R. § 3.304(f) (1998); see also
Zarycki v. Brown, 6 Vet. App. 91, 97 (1993).
A person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well-grounded.
The Secretary shall assist such a claimant in developing the
facts pertaining to the claim. 38 U.S.C.A. § 5107(a) (West
1991). Thus, the threshold question to be answered prior to
adjudicating the case on the merits is whether a well-
grounded claim has been presented. 38 U.S.C.A. § 5107
(West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A
well-grounded claim is defined as a "plausible claim, one
which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). Section 5107 provides that the claimant's submission
of a well-grounded claim gives rise to VA's duty to assist
and to adjudicate the claim. If the veteran has not
presented a well-grounded claim, his appeal must fail and
there is no further duty to assist him in the development of
his claim.
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence), and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498 (1995).
"Although the claim need not be conclusive, the statute
[Section 5107] provides that [the claim] must be accompanied
by evidence" in order to be considered well grounded.
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim
of service connection, this generally means that evidence
must be presented which in some fashion links the claimed
disability to a period of military service or to an already
service-connected disability. 38 U.S.C.A. §§ 1110, 1131
(West 1991); 38 C.F.R. §§ 3.303, 3.310 (1998); Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992); Montgomery v. Brown,
4 Vet. App. 343 (1993). Evidence submitted in support of the
claim is presumed to be true for purposes of determining
whether the claim is well grounded. King v. Brown, 5 Vet.
App. 19, 21 (1993). However, lay assertions of medical
diagnosis or causation do not constitute competent evidence
sufficient to render a claim well grounded. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski,
2 Vet. App. 492, 495 (1992).
Besides establishing a well grounded claim pursuant to Caluza
above, the chronicity provisions of 38 C.F.R. § 3.303(b) are
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service, or during an
applicable presumptive period, and still has such condition.
Such evidence must be medical unless it relates to a
condition as to which under case law of the Court, lay
observation is competent. If chronicity is not applicable, a
claim may still be well grounded on the basis of 38 C.F.R.
§ 3.303(b) if the condition is noted during service or during
an applicable presumptive period, and if competent evidence,
either medical or lay, depending on the circumstances,
relates the present condition to that symptomatology. Savage
v. Gober, 10 Vet. App. 488 (1997).
Psychiatric Disorder
While the veteran argues that his current psychiatric
problems are related to service, he has presented no medical
evidence to support this lay assertion. Moreover, the
veteran, as a lay person, is not competent to offer an
opinion regarding the question of medical causation.
Espiritu. The service medical records are negative for any
psychiatric problems or abnormalities during service. The
first reference to a psychiatric disorder, diagnosed as
generalized anxiety disorder was many years after service
separation, during the veteran’s incarceration. At that time
psychiatric disability was not linked to service. Although
the veteran contends that he was discharged from service
because of a psychiatric disability, the evidence shows that
his early release was based on his apathy and defective
attitude, and failure to adhere to military weight standards.
The service records indicate that the veteran was overweight
and was placed on a weight control program in January 1972.
He repeatedly failed to show for required weight checks, and
was reprimanded for this. He was also counseled on numerous
occasions, but failed to progress in the weight reduction
program and, in fact, gained weight over the course of
approximately 16 months. The reports indicate that there was
no evidence that his failure to comply with the weight
reduction program was due to medical causes beyond his
control. As to a psychiatric disorder other than PTSD, no
competent medical evidence has been received to establish a
causal connection between the veteran’s current anxiety
disorder and service.
As indicated above, in order to establish service connection
for PTSD, there must be medical evidence establishing a clear
diagnosis of the condition; credible evidence that an
inservice stressor occurred; and a link, established by
medical evidence, between the current symptoms and the
inservice stressor. In the instant case, the veteran has
failed to satisfy the criterion to the effect that there must
be a clear diagnosis of PTSD in order to grant service
connection. The VA examiners did refer to symptoms of PTSD,
but did not make such diagnosis. Although PTSD is noted in
the correctional facility records, the basis is unknown,
since the records do not show that a psychiatric examination
was actually undertaken. While the veteran contends that he
has PTSD, there is no competent medical evidence establishing
a clear diagnosis of PTSD. Further, there is no medical
evidence which links any presently existing psychiatric
disorder or PTSD to his military service. Therefore, the
Board finds that a well-grounded claim has not been
submitted. Grottveit.
Back Disorder
Service connection connotes many factors but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. This may
be accomplished by affirmatively showing inception or
aggravation during service or through the application of
statutory presumptions. 38 C.F.R. § 3.303(a) (1998).
Where a veteran served 90 days or more during a period of war
and arthritis becomes manifest to a degree of 10 percent
within 1 year from date of termination of such service, such
disease shall be presumed to have been incurred in service,
even though there is no evidence of such disease during the
period of service. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113 (West 199); 38 C.F.R. §§ 3.307, 3.309 (1998).
Congenital or developmental defects are not diseases or
injuries within the meaning of applicable law and regulations
for VA compensation purposes. 38 C.F.R. § 3.303(c) (1998).
A defect is a structural or inherent abnormality or condition
which is more or less stationary in nature. VAOPGCPREC 82-90
(O.G.C. Prec. 82-90). A disease may be defined as any
deviation from or interruption of the normal structure or
function of any part, organ, or system of the body that is
manifested by a characteristic set of symptoms and signs and
whose etiology, pathology, and prognosis may be known or
unknown. Id. Service connection may be granted for diseases
of congenital, developmental, or familial origin, but not for
defects, unless such defect was subject to superimposed
disease or injury during military service. Id. However,
this same General Counsel opinion does note that many defects
can be subject to superimposed disease or injury. If, during
an individual’s military service, superimposed disease or
injury does occur, service connection may be warranted for
the resultant disability.
While the veteran may believe that his current low back
disorder is related to service, he has presented no competent
medical evidence to support his lay assertions. In this
regard, review of the service medical records fails to
demonstrate the presence of any back disability. On the
other hand, the record is replete with references to the
development of a chronic back disorder beginning as a result
of a work related injury some years after military service.
The veteran himself has conceded this chronology on a number
of occasions. The veteran’s lay assertions as to any link
between current back disability and military service,
standing alone, cannot constitute evidence to establish a
plausible claim. The veteran, as a layperson, is not
competent to provide an opinion regarding the question of
medical causation. See Grottveit v. Brown and Espiritu v.
Derwinski, supra. There is simply no medical opinion
relating the veteran’s current low back disorder to service.
Therefore, in the absence of competent evidence to support
his lay assertions regarding the question of causation
presented in this case, the Board finds that a well-grounded
claim of service connection for a low back disorder has not
been submitted.
The veteran may file a claim supported by competent (medical)
evidence demonstrating that his current psychiatric and back
disabilities are related to military service. Further, the
Board notes that the VA may be obligated under 38 U.S.C.A.
§ 5103(a) (1991) to advise a claimant of evidence needed to
complete an application for a claim. This obligation depends
upon the particular facts of the case and the extent to which
the Secretary of the Department of Veteran Affairs has
advised the claimant of the evidence necessary to be
submitted with a VA benefits claim. Robinette v. Brown, 8
Vet.App. 69 (1995). In this case, the veteran has been
advised by the RO, in the statement of the case, and by the
Board in this decision of the evidence necessary to make his
claim well-grounded. In this regard, the Court of Appeals
for the Federal Circuit stated that it agreed with Robinette
v. Brown, 8 Vet. App. 69 (1995), in which the Court of
Veterans Appeals determined that the Department of Veterans
Affairs has an obligation to notify a veteran under section
5103(a) when the circumstances of the case put the Department
“on notice that relevant evidence may have existed, or could
have been obtained, that, if true, would have made the claim
‘plausible’ and that such evidence had not been submitted
with the application.” Thus, section 5103(a) imposes a duty
on the Department to notify a veteran of the evidence needed
to complete a submitted application when the Department is
aware, or reasonably should be aware, of the existence of
such relevant evidence. While the Department is not required
to rewrite and refine the veteran’s submissions, it is
required to notify the veteran when the circumstances
reasonably suggest that such additional relevant evidence may
be found elsewhere. The source of the Department’s
awareness, whether from the veteran or otherwise, and the
source or location of the evidence are all irrelevant. If
the Department knows or should know, it must tell. McKnight
v. Gober, 131 F.3d 1483 (Fed.Cir. 1997). There is no
suggestion in the voluminous record which has been presented
that any additional evidence exists which would serve to well
ground either of his claims.
Pension
The Board concludes that the claim for a non-service
connected pension is well grounded within the meaning of the
statute and judicial construction because the evidence shows
that it is plausible. See 38 U.S.C.A. § 5107(a) (West 1991).
The VA, therefore, has a duty to assist the veteran in the
development of facts pertinent to his claim. The relevant
evidence pertaining to this issue consists of a VA
examinations conducted in August and September 1991, and
January and September 1996, private treatment records from
1979 to 1983, and clinical records from the Texas Department
of Criminal Justice, Institutional Division, for treatment
from 1985 to 1995. The Board concludes that all relevant
data has been obtained for determining the merits of the
veteran's claim. The VA has, therefore, fulfilled its
obligation to assist the veteran in the development of the
facts of his case.
Non-service connected pension is payable to any veteran who
served at least 90 days during a period of war who is
permanently and totally disabled from a non-service connected
disability that is not the result of his own misconduct. 38
U.S.C.A. § 1521. A veteran is considered to be permanently
and totally disabled if he is suffering from a disability or
combination of disabilities that are sufficient to prevent
the average person from following a substantially gainful
occupation that is reasonably certain to continue throughout
his life, or if he is in fact unemployable as a result of
disability or disabilities that are reasonably certain to
continue throughout his life. 38 U.S.C.A. § 1502.
The statutory framework creates both an objective standard
and a subjective standard for determining if a veteran is
permanently and totally disabled. Talley v. Derwinski, 2
Vet. App. 282 (1992). In determining total disability
ratings, consideration is given to whether the veteran has a
disability or disabilities which are sufficient to render it
impossible for the average person to follow a substantially
gainful occupation. 38 C.F.R. §§ 3.340, 4.15. In order to
be considered permanently and totally disabled under this
objective standard, if the veteran has only one disability it
must be evaluated at 60 percent or more. 38 C.F.R. §§ 4.16,
4.17. If he has two or more disabilities, one disability
must be evaluated at 40 percent or more and he must have
additional disabilities to bring the total evaluation to 70
percent or more. 38 C.F.R. § 4.16(a). If this objective
standard is met, pension entitlement is established. Talley
v. Derwinski, 2 Vet. App. at 288. The percentage ratings set
forth in the VA's Schedule for Rating Disabilities (Rating
Schedule), codified in 38 C.F.R. Part 4, represent as far as
can practicably be determined the average impairment in
earning capacity resulting from diseases and injuries and
their residuals. Total disability evaluations are authorized
for any disability or combination of disabilities for which
the Rating Schedule prescribes a 100 percent evaluation, or
if the requirements of 38 C.F.R. § 4.17 are met. 38 C.F.R. §
3.340(a). Permanence of total disability will be taken to
exist when such impairment is reasonably certain to continue
throughout the life of the disabled person. 38 C.F.R. §
3.340(b). Diseases and injuries of long standing which are
actually totally incapacitating will be regarded as
permanently and totally disabling when the probability of
permanent improvement under treatment is remote. The age of
the disabled person may be considered in determining
permanence.
If the objective standard is not met because the veteran
fails to meet the percentage requirements outlined above,
consideration must be given to whether the veteran is
unemployable by reason of his disability, age, occupational
background, and other related factors. 38 C.F.R. §§
3.321(b)(2), 3.342, 4.17(b). Full consideration must also be
given to such factors as unusual physical or mental effects
in individual cases, to peculiar effects of occupational
activities, to defects in physical or mental endowment
preventing the usual amount of success in overcoming the
handicap of disability and to the effect of combinations of
disabilities. 38 C.F.R. § 4.15. If the veteran is found to
be unemployable based on these individualized factors, a
permanent and total disability evaluation on an extra-
schedular basis is warranted. 38 C.F.R. § 3.321(b)(2).
The veteran’s DD Form 214 reveals that he was born in June
1948, and served on active duty from October 1968 to May
1973. In his claim for pension filed in March 1991, the
veteran indicated that he had completed his GED during
service.
The veteran served on active duty for a period in excess of
ninety days during the Vietnam era. Therefore, his
entitlement to pension, apart from income and net worth
factors, is determined based on whether or not he is
permanently and totally disabled as a result of his
disabilities. A review of the record reveals that the
veteran has no service-connected disabilities. His principal
disabilities which may be considered for purposes of
determining entitlement to pension benefits are anxiety
disorder, with PTSD features, personality disorder and
psychotic disorder, not otherwise specified, status post T12
fracture, a low back disorder, hypertension, tension
headaches, and status post septoplasty with partial right
inferior turbinate resection. In the discussion below, while
percentage ratings for each of the veteran’s known
disabilities are considered, the Board emphasizes that rating
these nonservice-connected disorders is solely for the
purpose of evaluating his claim for a permanent and total
rating for pension purposes.
Anxiety Disorder
With PTSD features
The Board notes that the Schedule for Rating Disabilities for
mental disorders was amended, effective from November 7,
1996. Where a law or regulation changes after a claim has
been filed or reopened, but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the appellant generally applies. Karnas v.
Derwinski, 1 Vet. App. 308, 312 (1991). The veteran was
initially assigned a 10 percent evaluation for his anxiety
disorder with PTSD features by the RO in a rating action in
November 1991. By rating action in September 1997, the
veteran’s rating was increased to 30 percent under the
revised rating criteria. Inasmuch as the veteran was
assigned an increased rating under the revised criteria with
no apparent change in symptomatology, the Board finds that
application of the revised rating criteria is more
advantageous to the veteran. Accordingly, the Board finds
that the veteran will not be prejudiced by not considering
his case under the old criteria.
Anxiety disorder, with PTSD features, is evaluated under
Diagnostic Code (DC) 9411, and rated by analogy under DC 9440
for Chronic Adjustment Disorder.
Under the general rating formula for mental disorders, a
noncompensable evaluation is warranted when a mental
condition has been formally diagnosed, but symptoms are not
severe enough either to interfere with occupational and
social functioning or to require continuous medication. A 10
percent evaluation is warranted when occupational and social
impairment due to mild or transient symptoms which decrease
work efficiency and ability to perform occupational tasks
only during periods of significant stress, or; symptoms
controlled by continuous medication. A 30 percent evaluation
is warranted when there is occupational and social impairment
with occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, and mild
memory loss (such as forgetting names, directions, recent
events). A 50 percent evaluation is warranted when there is
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships. A 70 percent evaluation is warranted when
there is occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); and inability to establish and
maintain effective relationships. 38 C.F.R. § 4.130, DC
9440.
Application of the regulations show that medical evidence as
to the severity of the veteran’s anxiety disorder with PTSD
features are insufficient to support a finding of functional
impairment which is greater than the currently assigned 30
percent evaluation. During the veteran’s August 1991 and
September 1996 VA examinations, the examiner noted a history
of sleep disturbance, “bad dreams,” and mild depression.
It was also noted that the veteran had been incarcerated
since 1985. There was no medical evidence of emotional
tension or anxiety resulting in occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, recent events). A 30 percent evaluation is
warranted because a mental condition has been formally
diagnosed, but symptoms are not severe enough either to
interfere with occupational and social functioning with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks.
Therefore, the Board concludes that the veteran’s
symptomatology is productive of no more than the level of
disability contemplated by the 30 percent evaluation, and no
more, currently in effect.
Personality Disorder
& Psychotic Disorder
Likewise, the veteran’s personality disorder and psychotic
disorder, not otherwise specified, are evaluated under DC
9410, and rated by analogy under DC 9440 for Chronic
Adjustment Disorder.
The medical evidence reflects that the severity of the
veteran’s psychotic symptoms are insufficient to support a
finding of functional impairment which is greater than the
currently assigned noncompensable evaluation. During the
veteran’s September 1996 VA examination, the examiner noted a
history of auditory hallucinations and paranoid feelings.
The veteran was alert, cooperative and his mood was euthymic.
While the veteran expressed anger when discussing his
perceived unfair treatment by the military, his affect was in
the normal range, though mildly labile. His speech was
normal and his content of thought was relevant and goal
directed. There was no evidence of hallucinations or
delusions, and the veteran was well oriented. No medical
evidence of emotional tension or anxiety productive of mild
social and industrial impairment which decrease work
efficiency and ability to perform occupational tasks during
periods of significant stress was noted. A noncompensable
evaluation is warranted because a mental condition has been
formally diagnosed, but symptoms are not severe enough either
to interfere with occupational and social functioning or to
require continuous medication. Therefore, the Board
concludes that the veteran’s symptomatology is productive of
no more than the level of disability contemplated by the
noncompensable evaluation currently in effect.
Status Post
T12 Fracture
The veteran’s status post T12 fracture of the thoracic spine
is evaluated under 38 C.F.R. § 4.71a, DC 5285, for residuals
of a fracture of the vertebra. A 100 percent evaluation will
be assigned when there is cord involvement, the veteran is
bedridden, or requires long leg braces. A 60 percent
evaluation will be assigned without cord involvement;
abnormal mobility requiring neck brace (jury mast). In other
cases, the residuals are to be rated in accordance with
definite limited motion or muscle spasm, adding 10 percent
for demonstrable deformity of vertebral body.
DC 5291 addresses disability resulting from limitation of
motion in the thoracic spine. When limitation of motion of
the thoracic spine is moderate or severe, a 10 percent
evaluation is assigned. If limitation of motion of the
thoracic spine is slight, a noncompensable evaluation is
assigned. While an x-ray study of the veteran’s thoracic
spine by VA in September 1991 indicated the presence of a
very small superior compression fracture at T12, the
examination did not reveal any limitation of motion in the
thoracic spine or any evidence of muscle spasm. Likewise,
there was no evidence of muscle spasm or limitation of motion
of the thoracic spine when evaluated by VA in January 1996.
Therefore, the Board concludes that the veteran’s
symptomatology is productive of no more than the level of
disability contemplated by the 10 percent evaluation
currently in effect.
Low Back Disorder
Although the RO did not assign a separate rating for the
veteran’s low back symptoms, the Board finds that the medical
evidence of record indicates that a separate evaluation
should be assigned and rated as 10 percent disabling under 38
C.F.R. § 4.71a, DC 5295, pertaining to lumbosacral strain.
The rating criteria provides for a 40 percent evaluation if
the disorder is severe, with listing of the whole spine to
the opposite side, positive Goldthwait’s sign, marked
limitation of forward bending in standing position, loss of
lateral motion with osteoarthritic changes, or narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion. With muscle spasm on
extreme forward bending, loss of lateral spine motion,
unilateral, in standing position, a 20 percent evaluation is
warranted. With characteristic pain on motion, a 10 percent
evaluation is warranted. If there are slight subjective
symptoms only, the disorder is noncompensable.
On VA examination in January 1996, there was some limitation
of motion in the lumbar spine, and straight leg raising was
positive on the right side. However, there was no evidence
of muscle spasm, tenderness or characteristic pain on motion.
Thus, a rating higher than 10 percent for the veteran’s low
back disorder is not warranted. Furthermore, as there was no
objective evidence of pain during testing on VA examination
in September 1991 or on examination in 1996 and, given the
veteran’s limited physical activities and incarceration, the
Board concludes that the functional effects of pain and
functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45,
can not be quantified at this time. DeLuca v. Brown, 8 Vet.
App. 202 (1995).
Tension Headaches
The veteran’s tension headache is currently evaluated as
noncompensable under 38 C.F.R. § 4.124a, DC 8199-8100,
relative to migraine headaches. An evaluation of 50 percent
is warranted if there are very frequent, completely
prostrating and prolonged attacks productive of severe
economic inadaptability. With characteristic prostrating
attacks occurring on an average of once a month over the past
several months, a 30 percent evaluation is warranted, and
with characteristic prostrating attacks averaging one in 2
months over the last several months, a 10 percent evaluation.
Less frequent attacks are noncompensable.
In the instant case, the veteran described his headaches when
evaluated by VA in 1991 and 1996 as occurring 2 to 3 times a
day, and lasting for only a second or two. He specifically
denied that his headaches had any effect on his vision and
were not incapacitating. The evidence does not show that the
veteran suffers from prostrating attacks on an average of
once a month over the past several months. Accordingly, the
Board finds that the veteran’s tension headaches have been
fairly evaluated as noncompensable.
Hypertension
The RO has assigned a 10 percent evaluation the veteran’s
hypertension in accordance with the provisions of the Rating
Schedule, 38 C.F.R. Part 4, DC 7101. The Board notes that
the Schedule for Rating Disabilities for the cardiovascular
system was amended, effective from January 12, 1998.
However, the criteria for a rating higher than 10 were not
materially affected by the revisions. Given the current
symptomatology, evaluation of the veteran’s hypertension
under either the old or the new criteria will not be result
in a higher rating or be prejudicial to the veteran. The
additionally criteria for a rating under the revised rating
schedule is provided in parenthesis.
DC 7101 provides for the assignment of a 10 percent
evaluation for hypertensive vascular disease (essential
arterial hypertension) where the diastolic pressure is
predominately 100 or more. A minimum of 10 percent is also
assigned when continuous medication is shown necessary for
the control of hypertension and there is a history of
diastolic blood pressure of predominantly 100 or more (or
when systolic pressure is predominantly 160 or more). A 20
percent evaluation requires diastolic pressure of
predominately 110 or more with definite symptoms (or when
systolic pressure is predominantly 200 or more). Where there
is a diastolic pressure of predominately 120 or more and
moderately severe symptoms, a 40 percent evaluation will be
assigned. A 60 percent evaluation requires diastolic
pressure of predominately 130 or more and severe symptoms.
(Additional “moderate” or “severe” symptoms are not
required under the revised criteria for 40 and 60 percent
ratings, respectively.)
After review of the medical evidence of record, the Board
finds that the veteran’s hypertension is not manifested by
diastolic pressure predominately over 100 or with systolic
pressure predominantly 200 or more, and is well controlled
with medication. Additionally, when examined by VA in August
1991 and January 1996, the veteran’s blood pressure measured
136/78 and 122/72, respectively. Therefore, the Board
concludes that the veteran’s symptomatology is productive of
no more than the level of disability contemplated by the 10
percent evaluation currently in effect.
Status Post
Septoplasty
The evidence of record shows that the veteran underwent
septoplasty and right inferior turbinate partial resection to
repair a septal deviation to the left side which caused a 50
percent obstruction of the airway passage on the left side in
August 1986. The veteran also underwent additional
septoplasty without complication in February 1995. When
examined by VA in January 1996, there was no evidence of
septal deviation or obstruction of breathing.
The Board also notes that in October 1996, the rating
criteria for the respiratory system, including septum
deviation was revised. 61 Fed. Reg. 46720 (1996) (codified
at 38 C.F.R. § 4.97). Where a law or regulation changes
after a claim has been filed or reopened, but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant generally
applies. Karnas v. Derwinski, 1 Vet. App. 308, 312 (1991).
The old rating criteria under DC 6502 provided for a
noncompensable rating to be assigned for traumatic deflection
of the nasal septum with only slight symptoms; a 10 percent
evaluation required marked interference with breathing space.
The revised rating criteria provides for the assignment of a
10 percent rating for traumatic deviation of the septum when
there is a 50 percent obstruction of both nasal passages, or
complete obstruction on one side. 38 C.F.R. § 4.97, DC 6502.
Since the recent VA examination noted no abnormality of the
breathing passages or other residuals from the septoplasty,
the Board finds that the noncompensable evaluation currently
assigned is the appropriate rating for the veteran’s current
residuals.
Analysis
The Board finds that the veteran’s disabilities are properly
rated at the following percentages according to the pertinent
schedular criteria: anxiety disorder with PTSD features, 30
percent; low back disability with degenerative joint disease,
10 percent disabling; status post T12 fracture, 10 percent
disabling; hypertension, 10 percent disabling; personality
disorder and psychotic disorder, not otherwise specified,
noncompensable; tension headaches, noncompensable; and
septoplasty with partial resection, noncompensable. The
combined ratings total 60 percent, thus, the percentage
requirement of 38 C.F.R. § 4.16(a) is not met. 38 C.F.R. §
4.25. As previously stated, in order for a total disability
evaluation for compensation to be assigned, a combined total
rating of 70 percent or more must exist. The Board
emphasizes that the veteran’s combined rating represents the
average wage-earning impairment. None of the clinically
diagnosed disabilities, either alone or in conjunction with
any other disability or disabilities, is so severely
disabling as to render him unemployable. As such, the
evidence of record does not support the conclusion that the
veteran experiences disability which, even if permanent,
would render the average person unable to follow a
substantially gainful occupation. 38 U.S.C.A. § 1502(a).
Accordingly, a permanent and total disability evaluation
based upon the objective “average person” standard of
review is not warranted.
Regarding the subjective standard for determination of
pension, the Board has considered the nature of the veteran’s
disabilities, his age, and his occupational background. 38
C.F.R. §§ 3.321(b)(2), 3.342, 4.17(b). The Board notes that
the veteran is 50 years old, has a GED, and last worked full-
time in construction. However, he has been incarcerated
since 1985.
The clinical data of record does not suggest that he is so
disabled by his disabilities, which may be considered for
purposes of determining entitlement to VA pension benefits,
as to render him completely unable to follow substantially
gainful employment consistent with his occupational history.
In this context, the Board notes that while the veteran
complains of recurring low back pain, the most recent VA
examination in January 1996 showed no more than slight
limitation of motion. The veteran’s psychiatric disorders
and other physical disabilities are not severe enough to
interfere with occupational and social functioning such as to
render him permanently and totally unemployable. His
complaints regarding his inability to work are not supported
by adequate objective clinical findings to warrant the
conclusion that he is severely impaired. Upon consideration
of the combined effect of the veteran’s disabilities and
resulting functional limitations, in addition to his age,
education, and occupational history, the Board is not
persuaded that the veteran is permanently and totally
disabled. An allowance of pension benefits, therefore, is
also not warranted based upon subjective criteria. 38 C.F.R.
§§ 3.321, 4.15. The clear weight of the evidence is against
the claim and thus the benefit of the doubt doctrine is not
for application. The veteran’s claim of entitlement to a
permanent and total disability evaluation for pension
purposes must, therefore, be denied.
(CONTINUED ON NEXT PAGE)
ORDER
As well-grounded claims of service-connection for a
psychiatric disorder, including PTSD and a back disorder have
not been presented, the appeal is denied.
The claim for a permanent and total disability evaluation for
pension purposes is denied.
N. R. Robin
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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